The Trial Lawyer Summer 2018 - Page 57

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representative democracy . There is also evidence that this system contributes to the marginalization of minority and women voters and public distrust .
Non-unanimous verdicts are not allowed in federal criminal cases . In federal court the right to a unanimous jury can ’ t even be waived . As a practical matter , in the same state , the Sixth Amendment means entirely different things depending on whether the matter is being heard in state or federal court . Despite permission from the SCOTUS to accept the non-unanimous vote of 10 , 11 or 12 selected jurors , 48 states choose to afford full Sixth Amendment protections . That ’ s not because unanimity is a neglected topic . Over the years , a number of states have considered abandoning their unanimity requirements . In every instance , after much study and deliberation , change has been rejected and a unanimous verdict system was maintained . If nonunanimous verdicts are such a good idea , why aren ’ t the majority of states using them ?
Three years ago , I joined forces with a few other individuals to end this practice . 8 At that time , we had little more than a vision . Countless talks and publications later , history has been witnessed . On May 14 , 2018 , the Louisiana House of Representatives voted 82-15 to place a proposed constitutional amendment to end the practice on the ballot . That was the final legislative step . The vote means that , on November 6 , 2018 , Louisiana voters will decide whether to join 48 other states in requiring unanimous jury verdicts in all felony trials . If successful , this will be the single most impactful criminal justice reform to take place in Louisiana ’ s history due to the sheer volume of people directly and indirectly impacted by the non-unanimous jury system .
We now wait guard to see death declared in the case of a system that is deservingly on life support . Will Louisiana voters finally evict Jim Crow ? And will Oregon follow suit and deal the final death blow to the assault upon the Sixth Amendment the attack upon justice that has hovered over the state for too long ? For far too long , the rectitude of mind whereby a man does what he ought to do in the circumstances confronting him has been lacking . We have , instead , favored the sedative repose induced by the branding of legality upon what is unjust . The day has come to make justice as much an action as an ideal !
Angela A . Allen-Bell is Associate Professor of Legal Writing & Analysis & B . K . Agnihotri Endowed Professor , Southern University Law Center , J . D ., Southern University Law Center , 1998
Additional citiations available upon request ( Endnotes )
1 Russell Kirk , The Meaning of Justice , The Heritage Foundation , p . 7 ( March 4 , 1993 ), available at http :// s3 . amazonaws . com / thf _ media / 1993 / pdf / hl457 . pdf ( last visited 05 / 12 / 17 ).
2 Conrad Wilson , Even When Juries Can ’ t Agree , Convictions Are Still Possible In Oregon , OPB . org , Dec . 12 , 2016 , available at http :// www . opb . org / news / article / critics-challegeoregon-non-unamious-jury-law / ( last visited 02 / 19 / 18 ). It should be noted that the KKK was introduced in Oregon by a man who moved there from Louisiana .
3 Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana , pp . 76 ( 1898 ); La . Const . art . 116 ( 1898 ).
4 Official Journal , supra , at 374-375 .
5 In the post-Civil War South , “ recognition of freed slaves as full humans appeared to most white southerners not as an extension of liberty but as a violation of it , and as a challenge to the legitimacy of their definition of what it was to be white .” Douglas A . Blackmon ( 2008 ). Slavery By Another Name , 41 . N . Y .: Anchor Books . “ The notion that farms could be operated in some manner other than with groups of black laborers compelled by a landowner or his overseer to work as many as twenty hours a day was
antithetical to most whites .” Id . at 26 .
6 See Marjorie R . Esman , Non-Unanimous Jury Verdicts Steeped in Racist Past , The Advocate , Jan . 28 , 2016 , available at http :// www . theadvocate . com / baton _ rouge / opinion / our _ views / article _ e9fefca4-c278-57f6-a0fa- 24eb1c93d2fd . html ( last visited 05 / 12 / 17 ); Angela A . Allen-Bell , How The Narrative About Louisiana ’ s Non-Unanimous Criminal Jury System Became A Person Of Interest In The Case Against Justice In The Deep South , 67 Mercer L . Rev . 585 ( 2016 ); Thomas Aiello ( 2015 ). Jim Crow ’ s Last Stand : Nonunanimous Criminal Jury Verdicts in Louisiana . Baton Rouge : La . St . Univ . Press .
7 See Louisiana v . United States , 380 U . S . 145 , 149 ( 1965 ).
8 Senator Jean-Paul Morrell introduced the legislation . Representative Edmond Jordan also proposed companion legislation . The following were a part of the initial advocacy effort : Marjorie Esman , then Director of the ACLU of Louisiana ; Angela A . Allen-Bell , the author who is also a member of the National Black Lawyers-Top 100 ; Will Snowden , the Juror Project ; former inmate Calvin Duncan ; the Innocence Project New Orleans ; Ed Tarpley , Former District Attorney ; the Criminal Defense Lawyers Association ; and , Judy Perry Martinez , ABA President-Nominee .
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